McKelvey v Minister of Immigration
[2017] NZHC 659
•6 April 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2016-409-000510 [2017] NZHC 659
BETWEEN LEONORA ATETEO MCKELVEY
Plaintiff
AND
MINISTER OF IMMIGRATION Defendant
Hearing: 16 March 2017 Appearances:
A Toohey for Plaintiff
M Conway for DefendantJudgment:
6 April 2017
JUDGMENT OF DUNNINGHAM J
[1] Mrs McKelvey is a citizen of the Philippines. In 2014 she travelled to New Zealand in 2014 and married a New Zealand citizen. She has been unlawfully in New Zealand since 8 September 2015. On 15 February 2016, having been refused a work visa, she made a direct request of the Associate Minister of Immigration for a visa to remain in New Zealand. In a letter dated 13 May 2016, the Minister ’s delegate communicated his decision not to grant her a special direction under s 17 of the Immigration Act 2009 (the Act), or a visa under s 61 of the Act.
[2] Mrs McKelvey seeks judicial review of that decision. She claims that the exercise of the Minister’s statutory power of decision under the Act was flawed because the decision-maker:
(a) failed to have regard to evidence that the applicant was the “genuine victim of a bogus international work recruitment scheme in 2001”, which explained her conviction and deportation from Hong Kong in
2001;
MCKELVEY v MINISTER OF IMMIGRATION [2017] NZHC 659 [6 April 2017]
(b)failed to take into account that Immigration New Zealand (INZ), unreasonably frustrated her right to reconsideration of its earlier
16 October 2015 decision not to grant a visa by delaying its decision until after her temporary visa had expired;
(c) failed to take into account New Zealand’s international obligations and INZ’s internal operational manual in reaching the decision.
[3] In opposing Mrs McKelvey’s application for review, the Minister says:
(a) there is a limited ability to judicially review decisions such as this which are made under an absolute discretion;
(b)the matters which Mrs McKelvey claims were not taken into account were before the Minister’s delegate and he either confirms, or it can be inferred, that he considered them in making his decision;
(c) the decision was not such that no reasonable decision-maker could have decided not to grant her a special direction and a visa, given the evidence that she had:
(i) knowingly travelled on a false passport; (ii) significant health issues.
Background
[4] Mrs McKelvey is aged 65 and was born in the Philippines, where she married and had five children. In 2001 she faced financial hardship due to her husband’s inability to work and she was offered the opportunity to seek work as a maid in Italy at an appealing salary. The offer was made by a police officer who was an acquaintance’s husband. In order to secure the offer, Mrs McKelvey was required to pay a fee which equated to approximately NZ$11,500. Mrs McKelvey’s family contributed to the fee and she was also required to provide her passport to the police officer for the stated purpose of obtaining a work visa and airline ticket to Italy.
[5] When she was taken to the airport in November 2001 by the police officer’s wife, she was provided with a new passport document and told to sign it. The first stop in her journey was at Hong Kong where she was detained, arrested and charged with processing a false travel document. Mrs McKelvey says she did not have the funds to mount a defence and so pleaded guilty and was sentenced to six months imprisonment and made subject to a deportation order from Hong Kong.
[6] Upon her return to the Philippines, Mrs McKelvey made a complaint to the public prosecutor against the police officer and his wife, and provided a sworn affidavit in September 2002 confirming how she had been taken in by the police officer. The officer was charged, although, it does not appear that the charges proceeded to trial. Instead, there was an agreement to repay the fee he took over time. It seems about a third of the amount fraudulently taken was repaid before the police officer died.
[7] Mrs McKelvey first came to New Zealand on 5 June 2014 to visit her son’s family who live in Marlborough. She did so on the basis of a visitor visa obtained by making application to INZ authorities at the New Zealand Consulate in the Philippines. Prior to this she had to be issued with a passport. She explains that because the Philippine government considered her a victim of circumstance, it was satisfied that she should be issued with a new passport.
[8] Mrs McKelvey’s daughter-in-law assisted her in completing her application for a visitor visa and Mrs McKelvey accepts that she did not disclose her Hong Kong conviction and deportation in her application saying she thought that was unnecessary given the Philippine authorities considered she had not done anything wrong and was the victim of a scam.
[9] Mrs McKelvey obtained a second visitor visa, for the six month period from
7 November 2014 to 5 March 2015, again without disclosing her conviction and deportation.
[10] On or about 10 January 2015, and during the term of the second visitor visa, Mrs McKelvey responded to an advertisement placed by Mr McKelvey in the local
newspaper seeking a companion after the death of his wife from cancer. On
24 February 2015 they were married.
[11] Mrs McKelvey then sought a work visa on the basis of her marriage to Mr McKelvey. She obtained the services of a licensed immigration adviser, Mr John Horan. His terms of engagement required full disclosure of any adverse history. It was at that point Mrs McKelvey disclosed her conviction and deportation from Hong Kong in 2001.
[12] When INZ received Mrs McKelvey’s application on 3 March 2016, it issued Mrs McKelvey with a six month interim visa while officials considered her application and the matters disclosed in it.
[13] On 23 March 2015, INZ wrote to Mrs McKelvey advising that the issues disclosed “may have a negative impact on the outcome of your application”. INZ noted that the case officer who processed her original application had not been alerted to any character concerns and INZ sought a recent police certificate from the Philippines and one from Hong Kong in order to assess her character completely. The letter also advised that her application appeared to engage s 15 of the Act, (which provides that a person who has been deported from another country is not eligible for a visa). That would mean her application would be declined unless she sought and obtained a special direction under s 17 of the Act. She was informed that any such request would need to include the reasons explaining why she should be granted a special direction. The letter also advised Mrs McKelvey that her medical certificates had been referred to a medical assessor.
[14] Mrs McKelvey was written to again on 4 May 2015, this time to alert her to concerns raised by the medical assessor about her health and advising that the assessor had requested a further report from a specialist endocrinologist. The issues the specialist was also to comment on were “uncontrolled diabetes, uncontrolled hypertension” and “renal impairment”. Again, Mrs McKelvey was advised that this issue “may affect the outcome of your application” and “we are bringing it to your attention out of fairness to you”. She was invited to provide additional comment or information to INZ she wished on this issue.
[15] On 18 June 2015, INZ was provided with a clear Philippines police certificate by Mrs McKelvey.
[16] On 25 June 2015, INZ received Mrs McKelvey’s Hong Kong police
certificate which stated the following:
Date: 2001-11-13;
Offence: Possession of a forged/false/an unlawful obtained/an unlawful altered travel document/entry permit/re-entry permit/certificate of identity/document of identity/Vietnamese refugee card (S.42(2)(c)(i) Cap/115)
Result: 6 months imprisonment (Case No. KT/7408/01).
[17] On 2 July 2015, INZ asked its Hong Kong office to verify whether Mrs McKelvey had been deported from Hong Kong because that information was not contained in the Hong Kong police certificate. Advice confirming the deportation in 2002 was not received by INZ until 10 August 2015.
[18] On 3 August 2015, INZ received a response from the medical assessor which concluded that Mrs McKelvey did not have an acceptable standard of health. The medical assessor summarised the health concerns as being “severe hypertension, significant risk of complications, cause of hypertension remains uncertain, requires further investigation”.
[19] On 13 August 2015, INZ sent a further letter to Mrs McKelvey’s immigration adviser setting out INZ’s concerns with Mrs McKelvey’s health and character. The letter also raised concerns about the genuineness of her relationship with Mr McKelvey. In summary, she was advised that:
(a) she required a medical waiver because she did not have an acceptable standard of health;
(b)she required a special direction under s 17 of the Act because of her deportation from Hong Kong;
(c) she may not meet the good character requirements given her conviction and failure to disclose that information;
(d)there were concerns about whether her relationship was genuine and stable, noting she only met her future husband in January 2015 but was married to him in the following month.
[20] INZ requested a response to its letter by 28 August 2015 but, at the request of Mrs McKelvey’s immigration adviser, she was granted two extensions of time, first to 11 September 2015, and then to 25 September 2015.
[21] On 18 September 2015, INZ received a further request for an extension from Mr Horan in order to “present the complete case for both the medical and character waivers” for Mrs McKelvey. The request was declined.
[22] An INZ immigration officer then processed Mrs McKelvey’s application for a partnership work visa and, on 16 October 2015, wrote to her saying INZ declined the application because:
(a) she did not meet the character requirements; and
(b)having reviewed the information submitted, INZ was not prepared to grant a character waiver.
[23] The letter also confirmed that now her interim visa had expired she was liable for deportation. It reminded her that an appeal against liability for deportation had to be lodged no later than 42 days after first being in New Zealand unlawfully. By that stage, though, she had been unlawfully in New Zealand since 6 September 2015 when her interim visa expired, and she had less than a week in which to lodge such an appeal.
[24] On 30 October 2015, Mrs McKelvey, through her immigration adviser, requested a visa under s 61 of the Act. That provision allows the Minister, at any time, and of the Minister’s own volition, to:
…grant a visa of any type to a person who: (a) is unlawfully in New Zealand; and
(b) is not a person in respect of whom a deportation order is in force;
and
(c) is not a person in respect of whom a removal order is in force.
[25] That request was declined by letter dated 19 November 2015. Mrs McKelvey was also warned in the same letter that she was now in New Zealand unlawfully and was liable for deportation.
[26] It was only then that Mrs McKelvey appealed against her liability for deportation. However, the Immigration and Protection Tribunal refused to accept the appeal saying it was time barred as the last date for lodging an appeal was
20 October 2015.
[27] On 15 February 2016, Mrs McKelvey’s immigration adviser wrote to the
Minister requesting he intervene under ss 17 and 61 of the Immigration Act and, on
21 February 2016, he provided further information in support of that request. This further information included an affidavit from Mr Raymond Botengan, the assistant provincial prosecutor in the province of Benguet in the Philippines. He was the public defender who dealt with the charge against the policeman who purported to place Mrs McKelvey in a domestic position in Italy, and fraudulently took a fee for arranging that. Mr Horan also provided a copy of the affidavit sworn by Mrs McKelvey in 2002 to support the prosecution, and which annexed a copy of a receipt she had received from the policeman for payment of part of the fee she paid to him to place her in employment abroad. These new materials were referred to in the case note prepared for the Minister’s delegated decision-maker.
[28] The application for a special direction pursuant to s 17 of the Act and for a visa pursuant to s 61 was determined by Mr Aaron Baker, an assistant general manager at INZ, who held an appointment as a delegated decision-maker for the Minister. He considered, but declined her request, and that decision was communicated to Mrs McKelvey in a letter dated 13 May 2016.
[29] It is only the 13 May 2016 decision which is the subject of this application for review, because Mrs McKelvey is precluded by the Act from challenging the earlier decisions.
[30] Because Mrs McKelvey was no longer lawfully in New Zealand at the time of receiving the 16 October 2015 letter, she had no right to apply for reconsideration of that decision under s 185 of the Act. That can only be applied for if:
(a) the application for reconsideration is made within 14 days after the date on which the applicant received notice of the decision; and
(b)the applicant is still lawfully in New Zealand at the date of the decision.
There is also no right of appeal against such a decision.1 Furthermore, any right of review of that decision, or the 19 November 2015 decision, is time barred as a consequence of s 247(1).2
[31] Thus, while the earlier decisions were made in the absence of the further evidence supplied to support Mrs McKelvey’s assertion that she was a victim of a scam in 2001, this application relates to the 13 May 2016 decision, and must be considered:
(a) in light of the statutory power of decision-making given to the
Minister’s delegate under s 61 of the Act; and
(b) having regard to the suite of information which was before the
Minister’s delegate at the time he made his decision.
The relevant statutory framework
[32] Mrs McKelvey asked the Minister to grant her a visa under s 61 of the Act. As pointed out in the submissions for the Minister, s 61 is a “last resort provision”
1 Immigration Act 2009, s 186(1).
2 Unless special circumstances are found and leave is granted to extend time.
allowing the Minister to grant a visa to a person who is unlawfully in New Zealand”. Mrs McKelvey also required a special direction under s 17 because her deportation from Hong Kong otherwise made her ineligible for a visa.3
[33] Decisions under these sections of the Act are at the absolute discretion of the decision-maker. Section 11 of the Act provides that where a decision is at the absolute discretion of a decision-maker, it means that:-
(a) the matter or decision may not be applied for; and
(b) if a person purports to apply for the matter or decision, there is no obligation on the decision-maker to:
(i) consider the purported application; or
(ii) enquire into the circumstances of the person or any other person; or
(iii) make any further enquiries in respect of any information provided by, or in respect of, the person or any other person; and
(c) whether the purported application is considered or not,
(i) the decision-maker is not obliged to give reasons for any decision relating to the purported application, other than the reason that the section applies; and
(ia) privacy principle 6 (which relates to access to personal information and is set out in s 6 of the Privacy Act 1993) does not apply to any reasons for any decision relating to the purported application;
(ii) section 27 of this Act and s 23 of the Official Act 1982 do not apply in respect of the purported application.
[34] The consequence of s 11 is that the scope for judicial review of the exercise of such a discretion is significantly constrained. In Singh v Chief Executive, Ministry of Business, Innovation and Employment, the Court of Appeal held that a decision involving an absolute discretion to cancel deportation orders was effectively limited to a Wednesbury unreasonableness enquiry.4 Similarly, in Zhang v Associate Minister of Immigration, where the applicant sought review of a s 61 decision, the
Court of Appeal observed that the Act’s definition of absolute discretion “gives bleak
3 Section 15.
4 Singh v Chief Executive, Ministry of Business, Innovation and Employment [2015] NZCA 592, [2016] NZAR 93 at [46].
prospects for judicial review unless Wednesbury unreasonableness can be identified”.5 The Court went on to say that “effectively, the Court is limited to examining whether, on the information available to [the decision-maker], his decision could be seen as unreasonable in the Wednesbury sense”.6 That said, there is still scope for review by this Court. As Fogarty J said in Cao v Ministry of Business Innovation and Employment, “if a person in government elects to consider an application, the person must do so according to the law”.7
[35] The issue in this case is whether any of the matters raised by the appellant satisfy me that the high threshold for review of a decision under s 61 has been met.
Did the decision-maker fail to take account of the fact Mrs McKelvey’s right to
reconsideration pursuant to s 185 had been frustrated by INZ?
[36] Mrs McKelvey complains that INZ did not act reasonably and process her application in a timely way in order to protect her right of reconsideration conferred by the Act. She says INZ deferred setting out its formal position on her application and seeking a response on that, until 13 August 2015, so she did not have sufficient time to respond before her temporary visa had expired. That thwarted her right to reconsideration because that right only exists if the applicant is lawfully in
New Zealand.8
[37] In support of this submission, the applicant relied on Awan v Minister of Immigration, which held that INZ could not frustrate an applicant’s access to that right through unreasonable delay.9 In Awan, the Court considered there was an obligation on a decision-maker to make its decision within a reasonable time, and its failure to do so in Mr Awan’s case had unreasonably frustrated his right to reconsideration. The decision declining his application for renewal of a temporary
work visa was therefore quashed.
5 Zhang v Associate Minister of Immigration [2016] NZCA 361 at [14].
6 At [23].
7 Cao v Ministry of Business Innovation and Employment [2014] NZHC 1551 at [19].
8 Section 185(2)(b).
9 Awan v Minister of Immigration [2000] NZAR 655 at [21]-[32].
[38] This submission raises two issues. First, whether there has been unreasonable delay by INZ in Mrs McKelvey’s case and second, if there was, whether that impugned the 13 May 2016 decision.
[39] Mrs McKelvey submits that her application was made three days prior to her six month temporary visa being granted and she had promptly provided medical and character information to INZ when asked. She considers there were unreasonable delays by INZ, such as the time it took the medical assessor to review her medical certificates, and the delay between INZ circulating internal communications raising character issues and then conveying those to Mrs McKelvey.
[40] However, INZ says Mrs McKelvey was put on notice of the concerns they had with her application, both on 23 March and on 4 May 2015, and it was wrong to characterise the 13 August letter as being the first to communicate the concerns. It was clear she needed to obtain information to respond to these concerns and could have done so at those earlier stages. Furthermore, INZ was hindered in its enquiries by delays in receiving information from third parties. For example, INZ did not have documentary confirmation that Mrs McKelvey had been deported from Hong Kong until 10 August 2015. As soon as it had that confirmation, INZ wrote to her seeking her response.
[41] INZ also points out that it was not responsible for the delay in responding to the 13 August letter. Instead, Mrs McKelvey’s immigration adviser requested three extensions of time to respond to INZ’s letter. It was during that period that her interim visa expired.
[42] I accept that the delay in INZ informing Mrs McKelvey of its formal position was, in part, as a consequence of delay by third parties, such as the Hong Kong police. I consider this was ameliorated by INZ putting her on notice of the issues which appeared to be of concern at a much earlier stage. In those circumstances, it was not reasonable for her to defer obtaining information to respond to the concerns about her conviction and deportation until she received the 13 August letter. Indeed, the evidence confirming she was a victim of a scam was not provided until February the following year, four months after INZ’s October decision and 11 months after
INZ alerted her to the need to provide evidence to address its concerns about her character.
[43] Thus, I accept that Mrs McKelvey’s situation is distinguishable from that in Awan, in that the delays were largely explained and she was partly responsible for the delays which lead to the decision being communicated after her visa had expired.
[44] The second issue though was whether, even if established, this could form grounds to challenge the Minister’s delegate’s decision. Put at its highest, I consider this could only be the case if he was not made aware of the alleged delay by INZ.
[45] I am satisfied that the issue of alleged delay in processing her action was before Mr Baker. The issue was raised in Mr Horan’s letters of 15 and
21 February 2016 which were provided to the Minister’s delegate. In addition, the case note prepared for Mr Baker’s consideration referred to her claim that “due to the process taking so much time, Mrs McKelvey’s interim visa of six months expired”, and that “the excess time taken by INZ to complete the application in the time provided by the interim visa detracted from Mrs McKelvey’s right of appeal to the IPT and that this is contrary to the legal rights of the individual”.
[46] Mr Baker provided affidavit evidence in which he said he considered both
Mr Horan’s letters and the case note in making his decision, as is his usual practice.
[47] In my view, the allegation of undue delay thwarting her right to reconsideration was before Mr Baker and there is an evidential basis for being satisfied he considered that information. That is all that is required in making such a decision. This ground of review therefore fails.
Did the decision-maker apply the INZ operations manual provisions?
[48] Mrs McKelvey asserts that the decision-maker erred in “failing to apply his own operational manual procedures and instructions in terms of reaching decisions”. However, the submissions relating to this ground of review largely replicated those on the other grounds on which the application was brought.
[49] Mrs McKelvey asserted that the decision-maker was required to:
(a) Give the applicant a fair hearing and to avoid bias. Bias was said to be evident in two ways, being the way in which INZ dealt with a character waiver assessment and the delay in reaching the
16 October 2015 decision.
(b)The delegated decision-maker was also required to consider only relevant information and to give the application a proper consideration. In this regard, Mrs McKelvey identified that the case note provided to the decision-maker failed to highlight the relevant international obligations, which in this case was article 17 of the International Convention on Civil and Political Rights (ICCPR), being the right not to be subject to arbitrary/unlawful interference with family.
[50] The question of delay has already been discussed. The complaint about the character waiver assessment prepared for the 16 October decision, is discussed below under the ground of unreasonableness. In respect of both matters I am satisfied the issues were identified to the Minister’s delegate and he considered them.
[51] In relation to the claim that the relevant ICCPR right regarding interference with family was not considered, the evidence is that Mrs McKelvey provided the Minister with considerable information about her relationship with her husband, including a video made of an interview with her and her husband, a petition signed by members of her church and a letter from her husband.
[52] Having reviewed the materials provided to the decision-maker, I am satisfied that family considerations were clearly drawn to his attention, and that, in substance, he did not ignore the relevant ICCPR obligations. The allegedly irrelevant reference to New Zealand’s international obligations relating to the best interests of the child in the case note was simply given by way of example to Mr Baker as to how international obligations may be relevant. In this case, the case note provided a good summary of the competing family considerations and they were also extensively
traversed in the other materials provided to Mr Baker. Indeed, the fact that she was in a relationship with a New Zealand citizen and had a son and grandchildren lawfully in New Zealand was identified in the character waiver assessment template, which Mr Baker was provided with, as the key factors in support of her application.
[53] I do not accept, therefore, that he failed to have regard to this relevant factor so this ground of review fails.
Was the decision unreasonable?
[54] Mrs McKelvey submits that the 13 May 2016 decision reaches the threshold of Wednesbury unreasonableness because:
(a) there was a failure to have regard to the unreasonable delay of INZ in considering her application for a temporary visa, and this frustrated her right to obtain reconsideration of the 16 October 2015 decision;
(b)Mr Baker was briefed as to the fact that character waiver had been declined by INZ, but not to the “flawed reasoning adopted by INZ staff in reaching that decision”.
[55] I have already considered and discounted the issue of unreasonable delay. In any event, I have concluded Mr Baker was made aware of the delay.
[56] The second factor which is relied on to say the decision was unreasonable is the 5 October 2015 assessment by INZ staff declining a character waiver for Mrs McKelvey. It included the following reason:
Client claims to have been the victim of a recruitment scam in the Philippines, however, no evidence of the scam has been provided. Client keeps claiming she is a victim and has not expressed any remorse.
[57] Mrs McKelvey’s submission is that there is overwhelming evidence that she was the victim of a scam in 2001. That is supported by the affidavit of Mr Botengan and the copy of her own affidavit dated 7 September 2002, which is consistent with her current account of what happened. Mrs McKelvey says that INZ’s assessment that she did not express remorse and continued to claim she was a victim must now
be seen to be flawed given the evidence which was subsequently provided to support her account.
[58] However, the assessment was written before the supporting evidence of the fraud was supplied. It could not be said to be an unreasonable assessment given the evidence before INZ at the time. The supporting evidence subsequently supplied was placed before Mr Baker in the materials supplied by Mr Horan, and was referred to in the case note prepared for him. The case note says:
Mr Horan provided additional information later on in February 2016. Included is information from the Philippines provided by Mr Raymond P Botengan, an assistant provincial prosecutor. Mr Horan believes that this information, in addition to what has been provided so far, is sufficient to exonerate Mrs McKelvey.
The case note also expressly references all the supporting documents.
[59] Again, I am satisfied that the Minister’s delegate had available to him all the supporting information regarding the fact Mrs McKelvey was the subject of a scam. It was made clear to him that there was further information to support her version of events than was before INZ when it undertook the assessment for the character waiver. Mr Baker confirms that he took this material into account when making his decision. I am satisfied, therefore, that he was not relying on the position as assessed by INZ at 5 October 2015.
[60] That leaves only the question of whether any reasonable decision-maker, having regard to the material before him or her, could not have reasonably come to the view that the application should be refused.
[61] In summary, Mrs McKelvey’s submission is that in light of her marriage to Mr McKelvey, and the evidence produced to the Minister to show she was the victim of a scam, no reasonable decision-maker could have declined her application for a visa. She also rejects the submission that there is evidence that she “knowingly” used a false document, particularly when the charge she was convicted of did not include this mental element. I accept the evidence is equivalent as to her degree of awareness that the passport she was asked to sign was a false document.
[62] However, that is to ignore the other factors which told against her application. These included:
(a) she failed to acknowledge that she had been deported from
Hong Kong in both her first two applications for a temporary visa;
(b) she failed to advise that she had been convicted of an offence in
Hong Kong in both her first two temporary visa applications; and
(c) she did not have an acceptable standard of health and could not have been granted a visa without a medical waiver.
[63] In short, I am satisfied that on the material available to the Minister’s delegate, it was reasonably open to him to decline Mrs McKelvey’s request for a visa and a special direction to overcome her non-eligibility under s 15 of the Act.
Outcome
[64] Her application for review is therefore dismissed.
Costs
[65] Costs are reserved. The parties agreed prior to hearing that the appropriate costs categorisation for this proceeding is 2B, and I expect costs are likely to be agreed on that basis. If not, memoranda may be filed. However, if no application for costs is sought within 20 working days from this decision, then the order of the Court is that there be no order as to costs with the file to be closed.
Solicitors:
Anne Toohey, Barrister, Christchurch
Crown Law, Wellington
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